Friday, November 27, 2009

Jurors and note-taking - yea or nay?

I would love to get some feedback on this issue, as it's one that we face every time we have a jury trial:

Should jurors be allowed to take notes?

I'll lay out a few thoughts and let me know what you think in return -- my first poll is --->

Yes to note-taking:

do we really expect jurors to remember everything witnesses say? A whole week of testimony and they just have to sit there and memorize it?

what a great way for a juror to summarize or note the most important details from each witness

writing something down helps you remember it. Which is a good thing.

No to note-taking:

don't we want jurors looking at and evaluating witnesses, listening to them rather than scribbling down every word?

what happens when two jurors write down opposite "facts"? Hung jury?

instead of deliberation, does the jury room discussion become a test of who took the best notes? If so, we end up with 12 people relying on one person's transcription of testimony, rather than 12 people's independent memory and evaluation of that testimony

it may not be obvious at the time what the most salient points are, so why waste time writing down irrelevant stuff?

Here's one view in favor, from a criminal court judge. And the American Bar Association seems to agree:

"During the trial of the case, the jurors should be permitted to make notes and keep these notes with them when they retire for their deliberations.

(a) The notes should be used by the juror solely for the juror's purposes during the jury deliberations, and should be made available to other jurors solely at the discretion of the juror taking the notes. No person, other than the juror taking the notes, should have the right to view the notes.

(b) The jurors should be informed at the beginning of the trial that, at the close of the deliberations, all jurors' notes will be collected by the court and destroyed."

Our Judge tends to allow it in trials that are longer or more complicated, but not in the shorter and less complex ones. The murder trial we recently completed, for example, was only three days long but we had over 20 witnesses, and the judge allowed jurors to take notes. Shame I forgot to ask them if it helped!

It does seem the move is towards note-taking - are there any really good reasons against it?

13 comments:

There are a lot more good reasons for note taking than against it, but the situation will differ on a juror by juror basis. Some may have personal reasons or preferences for declining a note taking opportunity, but the question is whether it should be permitted as an option, not whether it should be required or expected. The one reservation that I have which is more than trivial is the possibility that a juror might feel compelled to take notes if several other jurors are doing so or might feel a lesser standing as an equal peer and be more inhibited in joining in and contributing input to deliberative arguments among jurors who had taken notes.

Jurors who take notes are more likely to evaluate testimony and attorney arguments exclusively on a factual basis and not be as vulnerable to influence from emotional appeals and inflammatory rhetoric by the lawyers, at least in my opinion. Since the finding of fact is the primary mission of a juror, I think that note taking not only should be permitted but also should be *encouraged* by the judge.

In terms of juror note taking favoring one side or the other in criminal trials, the edge would go to the side with the tightest case and most logic driven presentation. This should probably be the prosecution most of the time, because if otherwise the case would likely never have been brought to trial in the first place.

There are also side issues of efficiency and economics. From my one and only experience as a juror, which was in a trial whose judge did permit note taking, I got a perception that for the most part those who did not take notes came to an easy early decision after a mere cursory review of the judge’s charge and the overall testimony, while for the most part the note takers were more cautious and required a lot more discourse, analysis, and reconciliation of un-presented evidence and minor inconsistencies in testimony before being able to come to a conclusion. It also seemed like in general the note taking jurors were more participatory and articulate in the discussions during deliberation. Thus, it is my guess that note taking may adversely impact efficiency (though not fairness) in simple cases by extending the time needed for the deliberative process to take its course; but on the other hand in more complicated cases it might lessen the chances of ending up with a hung jury, with all the wasted time and financial consequences such an outcome would entail. However, this impression is just from observation in a single anecdotal personal experience, sample size of one, so I’m not claiming that any general inferences can be made.

Consider an analogy related to a point made in the essay by Judge McKeon which DAC cited in his post. What if a professor gave a lecture to two class sections of the same course, allowing one class to take notes and prohibiting note taking in the other? If an exam were then given where students had to solve problems based on material from the lecture, which class do you think would have the highest percentage arriving at the correct solutions?

I would add, both to the discussion and the analogy, that you run into issues with the kinds of notes people take. I've never been in court but I have taught classes, and note-taking is no guarantee of accuracy.

Also, I have to ask, if the jurors have access to the transcript of the trial via the court stenographer, then what else would they be taking notes on? It would seem to me that they could review the factual materials this way, and do so perhaps more accurately. Which would leave note-taking for just their impressions... and that to me seems like adding an unnecessary complication to the whole process.

I wonder if, when we're looking to try something new, we expect the new thing to be perfect. Sure, note taking has its disadvantages but really the question is: is it better than not allowing jurors to take notes? Anonymous seems to think so, and I guess I lean that way too.

slcboston, thanks so much for your comments. Interesting what you said about the stenographer.... though she'd kill you for calling her that in my court: she's a court reporter! And in Texas the law is that the jurors only get to hear specific pieces of a witness's testimony in the event there is a dispute among jurors as to what was said. In other words, they don't get to sit and read through the transcript in the jury room. One reason for this is that there is no transcript until the court reporter types one up after the trial. What she does is read the testimony back to the jurors, the few lines that are relevant to their dispute.

I was a juror on a recent murder trial of Mr. DA Confidential's and I did not take notes. I knew I would miss important details if I had. I was able to look at the defendant and witness' to see there reaction to things. That was more important to me. On that case I think more than half of the jury took notes. I feel everyone was treated the same and it was not held against them for not taking notes. Some people ended up writing pages of notes and did write things down wrong. That lead to LONG discussions of what really happened, then transcripts were requested. But some of the notes did help when story lines from witness' got confusing. I think letting them take notes if they ask is fine, but not to pressure anyone to take notes. And make sure they understand the rules of not treating them like transcripts.

Given what's known about the inadequacy of human memory, I agree note taking should be encouraged. The court reporter's transcript is available as remedy when notes may be mistaken. Moreover, even if note taking ends up creating a de facto hierarchy among jurors during deliberations, that's inevitably true anyway when 6 or 12 people interact. I'd rather those hierarchies develop based debates about what was actually said than on emotional aspects.

I also don't understand why note taking should detract from evaluating witnesses - that's not the case in my experience. In fact, the things that go in your notes are subjective - often you're writing down your evaluations, not really transcripts of what's said. It may not be obvious at the time what's salient, but note takers are engaged in a process of IDENTIFYING what's salient and recording it as they hear it.

Barbara raises an excellent point. Some people are poor note takers and it makes them miss parts of what is said. No one should be required to take notes. For myself, I'm an experienced, prolific note taker and tend not to miss much. I'd NEVER rely solely on my memory even for writing a blog post about the kind of detailed debates one sees at trial, much less for deciding a defendant's fate in a murder case. That's because my goal is to "get it right."

Note taking should be encouraged and it nearly borders on unethical to say jurors shouldn't do it if they think it would help them deliberate. I'm also not sure why the Bar Association thinks notes should be destroyed afterward, either, or by what authority.

Important facts that might not seem so at the time, later could prove worthwhile, no note of reminder could cause an important point to be missed, so perhaps you might wish to re think you're position on note taking, could be in you're best interest next time you get arrested.

Like Barbara, I too was a juror for one of DA Confidential’s recent murder cases. In fact, from her description and the coincidence that one of my fellow jurors also had the name Barbara, I suspect it might be the same case. I happened to be one of those who took advantage of the judge’s leniency about taking notes and for me that permission was invaluable. My notes were a tremendous help when I was trying to assess witness credibility or professional credentials; when I was trying to spot any missing pieces or unaccounted for characters in the story line; when I was trying to reconcile some minor contradictory testimony and time line inconsistencies; and when I was trying to resolve a few other little uncertainties in my mind. Since the evidence in this case was entirely circumstantial, the threshold for “beyond reasonable doubt” was ratcheted up a few notches to meet my personal comfort level and I don’t know if I could have gotten there without being able to refer back to the notes I took.

All that being said, I’m still at a loss as to why the 167th district court has yet to join the 21st century and use contemporary videotaping technology for documenting courtroom testimony. If jurors could have access to videos similar to those on YouTube for each witness’s testimony, with a split screen half focused on the witness stand and half focused on the defendant, then the concerns of all viewpoints would probably be mitigated, and the question of needing to take notes would more or less be moot.

3:09, probably you're less worried about what note taking jurors might miss than what they might catch. Like the holes in your case.

I actually disagree with 4:42 that video could mitigate the need for note taking. Note takers aren't transcribing - most of what people write down isn't direct quotation but points that are important to them, questions raised by testimony, etc.. It's part of their deliberative process, as 4:42's comment demonstrates when s/he writes "I don’t know if I could have gotten there [a guilty verdict] without being able to refer back to the notes I took."

While there are folks like 3:09 who perhaps can't walk and chew gum at the same time, note taking doesn't necessarily distract one's attention (unless you're just bad at it) and for most people arguably focuses it.

Jurors at times do tend to focus more on note taking than on what is coming out on the stands. I've seen more than one note where jurors ask about "what if our notes disagree". While there are some folks who CAN listen and take notes at the same time, I submit those groups of folks are small.

The judges I've practiced in front have been split about 75-25 against, going back 20 years or so.

Anyone who has ever practiced criminal law knows the notes tend to repeat. Jurors often request to "have the testimony sent back regarding witness X" and then have to go through the cumbersome process of the court informing them they (1) must be in dispute (2) about a particular point of testimony.

I can see why many serious jurors do want to take notes. They don't know what they're getting into and want to make sure they are fair. Great. That's what we want.

But I think notetaking is a bad idea. The next issue will be the modern techie who wants to take notes on their pda or their mini-laptop, because they can type faster than they can write and it is literally second nature to them. Where do we draw the line? Old school paper and pen is ok but no electronics? Or do we include electronics in the process as well, which opens up the possibly realm of information being more easily discussed or transmitted by a juror during a trial to others, as in "You won't believe what this witness just said!" type posts and emails to others.

All of the trials I've been involved in where note taking was allowed required that the jurors leave the notes in the custody of the baliff overnight in multi-day trials. Most baliff's take this seriously, but again, I've known some nosy baliff's who I suspected were not above glancing at jurors notes when the jury was not there.

All in all, I think it's a more trouble than listening attentively to all of the evidence.

Whenever I've selected a jury, after they are impaneled, and one raises their hand asking the judge if they can take notes, I internally groan and chide myself for not picking that person out. Usually I'm good about selecting strong personalities

Based on this post, I'm considering adding a question to my voir dire about the desire to engage in note taking.

Better yet, why not allow jurors to review the official transcripts when deliberating? Having served on a federal jury (and as the jury foreman), it would have been a very valuable tool for focusing on what the testimony actually was rather than what we as jurors were "pretty sure" we remembered...

Mr. Shilling: Good question, the problem is that no transcript exists at the time the jury deliberates. The court reporter will only create a transcript (a process that takes days or even weeks) if one is needed for appeal after the trial. But your question brings up the issue, mentioned previously, about recording the witness testimony in video format or something similar.About which I haven't thought enough to comment. :)

Comments posted to this blog are NOT the opinion of the Travis County D.A.'s office, under any circumstances. They are only the personal, non-representative opinion of D.A. Confidential if posted under his name.I welcome all comments, as long as they are expressed with politeness and respect. I will delete all comments that I deem to be personal attacks, or that are posted merely to antagonize or insult.

The first in the Hugo Marston mystery series:

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About Me

I am a prosecutor and writer in Austin, Texas. My first novel, a mystery called THE BOOKSELLER, was released in October of 2012, the sequel, THE CRYPT THIEF, came out in May of this year, and the third in the series will be out in January 2014.
Author website: www.MarkPryorBooks.com
Email: Mark[at]MarkPryorBooks [.]com.